Midterm_Review

Chapter 2: Charter Rights and Freedoms

Limitations on Charter Rights

• Section 1: Government can interfere with rights and freedoms if justified in a free and democratic society.

• Section 7: Permits government interference with life, liberty, and security of the person, provided it follows fundamental justice.

  • Procedural fairness is a key requirement stemming from Section 7.

  • Procedural fairness is a responsibility of the government.

  • The government has a duty to follow the Constitution.

Chapter 3: Sources of Law in Canada

Sources of Law

• Branches of Government:

  • Legislative: Parliament (federal) & Legislative Assemblies (provincial).

  • Executive: Prime Minister and cabinet (federal) & Premier and cabinet (provincial).

  • Judicial: Judges in various courts (appointed federally or provincially).

• Types of Law Made:

  • Statute Law: Legislation from the Parliament or Legislative Assemblies.

  • Subordinate Legislation: Regulations made under authority of legislation.

  • Case Law: Developed from court decisions.

Constitution – The Division of Powers

Division of Powers

• Constitution Act, 1867, and the Charter limit the supremacy of Parliament.

• Sections 91 and 92 allocate powers between federal and provincial governments:

  • Provinces can establish rules in areas they govern.

  • The federal government has exclusive powers in its jurisdictions.

• Judges enforce compliance with the Constitution by striking down non-compliant laws.

Constitutions – Role of Judges

Judicial Role

• Judges ensure laws comply with the Constitution by:

  • Assessing if legislation falls within the authority of either the provincial or federal government (Sections 91 and 92).

  • Determining if procedural fairness and other Charter rights are upheld (e.g., Section 7).

Common Law System: Precedent and Stare Decisis

Court Hierarchy in British Columbia

• Provincial Court: Handles less serious matters.

• Supreme Court of British Columbia: Deals with more serious cases and appeals from the Provincial Court.

• British Columbia Court of Appeal: Handles appeals from the Supreme Court of BC.

• Supreme Court of Canada: Final court of appeal from provincial courts.

Chapter 4: Alternative Dispute Resolution (ADR)

ADR Methods

• Negotiation: Parties decide on the resolution without third-party help.

• Mediation: A neutral third party helps the disputing parties reach an agreement.

• Arbitration: A third party makes a binding decision on the dispute.

Advantages of ADR

• Maintains control for the parties.

• Reduces delays and distractions.

• Generally, less expensive than court litigation.

• Preserves goodwill between parties and keeps disputes private.

Disadvantages of ADR

• Potential for lack of judicial fairness and impartiality.

• Courts can pressure parties for information more effectively.

• ADR decisions may lack enforceability.

• No public record of the dispute or decisions.

Civil Litigation

Overview of Civil Litigation

• Trials are public; justice must be transparent.

• Equal access to courts is guaranteed for all litigants.

• Decision based on the balance of probabilities (more likely true than false).

Pre-Trial Procedures

• Discovery: Includes document disclosure and verbal examination of witnesses.

• Settlement Offer: Any party can propose a settlement to resolve the matter.

Civil Litigation Remedies

• Damages: Monetary compensation can be:

  • General: For pain and suffering or future losses.

  • Special: For costs incurred before the trial.

  • Punitive: To punish the wrongdoer or prevent ongoing violations of rights.

Regulatory / Administrative Bodies

Structure and Function

• Regulatory bodies operate under the executive branch, responsible for public administration.

• Complaints against regulators are typically handled by administrative tribunals (e.g., Labour boards, Human Rights commissions).

Review of Tribunal Decisions

• Tribunal decisions can be reviewed by courts for:

  • Procedural fairness compliance.

  • Adherence to jurisdictional limits.

Natural Justice

• Derived from Section 7 of the Charter, rules include:

  • Advance notice of decisions.

  • Opportunity for individuals to present their case before decisions are finalized.

  • Decisions must be made by impartial decision-makers.

Chapter 5: Intentional Torts

Assault and Battery

• Assault: Actions creating apprehension of imminent harmful contact.

• Battery: Intentional unwanted physical contact does not require intent to harm.

• Intent must originate from the person’s conscious mind.

Defamation

• Elements include:

  • A defamatory statement affecting the reputation.

  • Reference to the plaintiff and publication to a third party.

  • Innuendo: Contextual meaning may suffice for defamation beyond literal interpretation.

Defamation Defences

• Justification: Truth is a defence against defamation claims.

• Qualified/Absolute Privilege: Certain communications are privileged in specific contexts.

• Fair Comment: Opinions on public interest content may not be defamatory.

Private Nuisance

• Interference with use/enjoyment of property or damage to another’s property.

• Substantial & unreasonable interference criteria include noise, pollution, etc.

Trespass to Chattels, Conversion, and Detinue

• Trespass to Chattels: Physical interference with someone else’s goods.

• Conversion: Intentional appropriation of goods for personal use, includes theft.

• Detinue: Wrongful possession of goods where return is refused.

False Imprisonment

• Unlawful and intentional constraint on a person's freedom.

Chapter 6: Negligence

Negligence Elements

• Duty of Care: Did the plaintiff owe the defendant a duty?

• Standard of Care: Was the standard of care met?

• Causation: Was there a direct link between actions and injuries?

• Remoteness of Damages: Were the damages predictable and not too remote?

Defences to Negligence

• Voluntary Assumption of Risk: The plaintiff knowingly accepts risks.

• Contributory Negligence: Responsibility shared based on fault.

• Illegality: If the plaintiff was engaged in illegal activity, their claim may be barred.

Chapter 7: Contract Formation

Essentials of a Contract

• Consensus: Must include an offer and acceptance without new terms.

• Consideration: Both parties must provide value in the agreement.

Offer and Acceptance

• Offers can be revoked, but must be communicated unless an option contract exists.

• Invitations to treat are not valid offers.

Consideration Guidelines

• Must involve something of value, excludes prior obligations.

• New obligations introduced in modifications must also be supported by consideration.